By Attorneys Ben Loveman & Nancy E. Miller
Immigrating through marriage is a very common way to get a green card. Once a U.S. citizen and an alien agree to marry each other, they must work out the details of when and where to marry and how the immigration of the non-citizen fits into their plans. There are three different ways to accomplish this. Two of them involve K visas. The other involves completion of the entire process in the home country via a family petition and consular processing.
K-1 visas are for fiancés of U.S. citizens. A K-1 visa requires that the parties have a genuine intent to marry; the legal capacity to marry within 90 days of entry; and have met in person at least once in the last 2 years. In rare circumstances this final requirement can be waived for extreme hardship or if satisfying the requirement violates strict cultural customs. The minor children (under the age of 21) of a K-1 visa holder can accompany or follow the K-1 beneficiary on a K-2 visa.
A K-3 visa is issued to an alien who had married a U.S. citizen; is the beneficiary of an immediate relative visa petition; and seeks to enter the United States to await approval of an immigrant visa (green card). The K-4 classification allows minor children of the K-3 to immigrate as a derivate of the K-3. The K-3 process is similar, but not identical, to that of a family petition and consular processing.
Grounds of inadmissibility applicable to the beneficiary, previously approved K visas filed by the petitioner and the petitioner’s criminal history all affect the possible issuance of a K visa.
Subsequent to entry on the K visa (and after the marriage of the K-1 to the petitioner), the K beneficiary must apply to adjust status to permanent residence. A K visa holder can only adjust status based on the marriage to the K petitioner. Approval of the application leads to permanent residency as a conditional resident in most cases. But the process is not always smooth. Divorce, separation, or the ageing-out of children complicates the path from K status to permanent residency.
Recent court decisions have mitigated these complications. Recent case law has confirmed that K-1/K-2 visa holders are still eligible to adjust status despite divorce. This is because eligibility is established at entry. However, they may only adjust on the basis of the marriage to the U.S. citizen petitioner and must establish the marriage was bona fide.
For K-3/K-4 visa holders, divorce is a bigger problem. This is because eligibility for adjustment of status is tied to the visa petition from the petitioner. Divorce results in revocation of the petition. However, divorce will not be the end of the road for the K-4 derivative upon a showing that a family relationship continues to exist with the petitioner. Separation, legal or in fact, will not destroy eligibility for the K-3/K-4 visa holder so long as the marriage was bona fide.
Aging out (turning 21) is an issue that affects K-2/K-4 beneficiaries. Until recently, USCIS policy held that K-2 visa holders lost eligibility for residency if the process was not completed before they turned 21. However, the courts have determined that eligibility is fixed as of entry so a K-2 visa holder’s age is locked in as of the date of entry provide the K-1 parent marries the K-1 petitioner within 90 days of entry to the U.S.
The K-4 visa category carries a variation of this problem. A person is eligible for a K-4 visa if they are the under 21 year old child of a K-3 beneficiary. However, a K-4 visa holder adjusts as the beneficiary of an immediate relative petition filed by the U.S. citizen petitioner. That petition is only valid if the marriage between the petitioner and the K-3 parent took place before the K-4 turned 18. Thus, a K-4 visa holder over the age of 18 at the time their parent married the petitioner, could enter the U.S. in K-4 status but would not be allowed to adjust their status.
There is a glimmer of hope for those with this issue. A recent court decision held a K-4 visa holder can adjust status without an approved visa petition. The court left unanswered the question of how such an adjustment of status could be accomplished but still the door has been opened.
Whether the couple should apply for a fiancé visa, a K-3 visa or choose the consular processing route are major decisions. Consultation with an experienced and knowledgeable immigration lawyer will allow the couple to determine which method best suits their situation.
